[Federal Register Volume 62, Number 121 (Tuesday, June 24, 1997)]
[Proposed Rules]
[Pages 34035-34039]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-16553]


=======================================================================
-----------------------------------------------------------------------

LIBRARY OF CONGRESS

Copyright Office

37 CFR Chapter II

[Docket No. RM 96-3A]


Notice and Recordkeeping for Subscription Digital Transmissions

AGENCY: Copyright Office, Library of Congress.

ACTION: Notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: The Copyright Office of the Library of Congress is requesting 
further comments on the requirements by which copyright owners shall 
receive reasonable notice of the use of their works from subscription 
digital transmission services, and how records of such use shall be 
kept and made available to copyright owners. The Digital Performance 
Right in Sound Recordings Act of 1995 requires the Office to adopt the 
regulations. The Office is requesting this additional comment before 
issuing interim regulations.

DATES: Comments must be submitted on or before August 25, 1997.

ADDRESSES: An original and fifteen copies of the comments shall be 
delivered to: Office of the General Counsel, Copyright Office, LM-403, 
James Madison Memorial Building, 101 Independence Avenue, S.E., 
Washington, D.C., or mailed to: Nanette Petruzzelli, Acting General 
Counsel, Copyright GC/I&R, P.O. Box 70400, Southwest Station, 
Washington, D.C. 20024.

FOR FURTHER INFORMATION CONTACT: Nanette Petruzzelli, Acting General 
Counsel, or Jennifer L. Hall, Senior Attorney, Copyright GC/I&R, P.O. 
Box 70400, Southwest Station, Washington, D.C. 20024. Telephone: (202) 
707-8380. Telefax: (202) 707-8366.

SUPPLEMENTARY INFORMATION:

Background

    On November 1, 1995, Congress enacted the Digital Performance Right 
in Sound Recordings Act of 1995. Public Law No. 104-39, 109 Stat. 336 
(1995). The law gave to sound recording copyright owners an exclusive 
right to perform their works publicly by means of a digital audio 
transmission. 17 U.S.C. 106(6). Certain digital transmissions were 
exempted from the scope of the right, 17 U.S.C. 114(d)(1), while 
nonexempt digital subscription services were given the opportunity to 
qualify for a statutory license. 17 U.S.C. 114(d)(2).
    Congress directed the Librarian of Congress to establish 
regulations under which copyright owners may receive reasonable notice 
of the use of their sound recordings under the statutory license, and 
under which entities performing the sound recordings shall keep and 
make available records of such use. 17 U.S.C. 114(f)(2).

The Sec. 114 License for Nonexempt Subscription Transmissions

    A nonexempt digital subscription service transmission is subject to 
statutory licensing in accordance with 17 U.S.C. 114(f) if the 
transmission is not part of an interactive service, does not exceed the 
``sound recording performance complement,'' does not give an advance 
program schedule or prior announcement of titles to be performed, does 
not automatically cause the receiving device to switch from one program 
channel to another, and includes information encoded by authority of 
the copyright owner identifying the title, the featured artist, and 
related information. 17 U.S.C. 114(d)(2). The ``sound recording 
performance complement'' is defined as:

the transmission during any 3-hour period, on a particular channel 
used by a transmitting entity, of no more than--
    (A) 3 different selections of sound recordings from any one 
phonorecord lawfully distributed for public performance or sale in 
the United States, if no more than 2 such selections are transmitted 
consecutively; or
    (B) 4 different selections of sound recordings--
    (i) by the same featured recording artist; or
    (ii) from any set or compilation of phonorecords lawfully 
distributed together as a unit for public performance or sale in the 
United States, if no more than three such selections are transmitted 
consecutively: Provided, That the transmission of selections in 
excess of the numerical limits provided for in clauses (A) and (B) 
from multiple phonorecords shall nonetheless qualify as a sound 
recording performance complement if the programming of the multiple 
phonorecords was not willfully intended to avoid the numerical 
limitations prescribed in such clauses.

17 U.S.C. 114(j)(7).
    Digital subscription transmission services that qualify for the 
statutory license may reach a voluntary agreement as to rates and terms 
with sound recording copyright owners, or may petition the Librarian of 
Congress to convene a copyright arbitration royalty panel (CARP) to set 
rates and terms for those entities that have not reached voluntary 
agreement. 17 U.S.C. 114(f). On June 4, 1996, no voluntary agreement 
having been reached, the parties petitioned the Librarian to convene 
such a CARP. Rates and terms set by the CARP will apply to all 
subscription services not subject to voluntary agreement. 17 U.S.C. 
114(f)(2)-(3). However, Congress also directed the Librarian of 
Congress to establish regulations by which copyright owners may receive 
reasonable notice of the use of their sound recordings under statutory 
license, and under which records of such use shall be kept and made 
available by the entities performing the sound recordings. 17 U.S.C. 
114(f)(2). Anyone performing a sound recording publicly by means of a 
nonexempt subscription transmission under section 114(f) may do so 
without infringing the exclusive right of the sound recording copyright 
owner by complying with the notice requirements that the Librarian 
prescribes by regulation and by paying royalty fees in accordance with 
the law. 17 U.S.C. 114(f)(5).

Rulemaking on Notice and Recordkeeping

    On May 13, 1996, the Copyright Office published a Notice of 
Proposed Rulemaking in the Federal Register requesting comments on the 
requirements by which copyright owners should receive reasonable notice 
of the use of their works from subscription digital transmission 
services and how records of such use should be kept and made available 
to copyright owners. The Office asked commentators to consider both the 
adequacy of the notice to sound recording copyright owners and the 
administrative burdens placed on the digital transmission services in 
providing notice and maintaining records of use. 61 FR 22004 (May 13, 
1996).
    The Office received a total of four comments and three reply 
comments, as well as one surreply and one comment to the surreply. 
Comments were submitted by the Recording Industry Association of 
America (RIAA); DMX, Inc. (DMX); Muzak; and Digital Cable Radio 
Associates/Music Choice (DCR) (``commenting parties''). The comments 
set forth a wide range of proposals for notice and records of use, with 
varying form and content requirements. The comments also included 
proposals concerning matters not addressed in the

[[Page 34036]]

Act, such as confidentiality and auditing.
    On Thursday, November 14, 1996, the Copyright Office met with the 
parties to facilitate agreement on notice and recordkeeping 
requirements for digital subscription services under 17 U.S.C. 114, and 
to discuss the proper regulatory and recordkeeping role for the Office. 
See Memorandum from Marilyn J. Kretsinger, Acting General Counsel, U.S. 
Copyright Office, to Commenting Parties (Oct. 9, 1996). In attendance 
were 15 individuals representing RIAA, DMX, Muzak, DCR, and the 
Copyright Office. Further written comments were submitted in response 
to a draft meeting summary distributed to participants by the Copyright 
Office. A second meeting took place on Thursday, January 23, 1997. See 
Memorandum from Marilyn J. Kretsinger, Acting General Counsel, U.S. 
Copyright Office, to Commenting Parties (Jan. 14, 1997). A summary of 
the written comments and meeting discussions will be included with the 
published interim regulations.1
---------------------------------------------------------------------------

    \1\ The comments and meeting summaries are available in the 
Public Information Office of the Copyright Office, Room LM-401, 
James Madison Memorial Building, Washington, D.C.
---------------------------------------------------------------------------

    In this Notice of Inquiry, the Copyright Office requests further 
written comment from interested parties relating to quarterly reports 
of use to be provided by digital subscription services, before 
proceeding to issue interim regulations under section 114. The 
regulations will be issued on an interim basis due to the developing 
nature of the technology to be employed in accommodating the reporting 
requirements.

Policy Issues Relating to Quarterly Reports of Use Identified in 
Discussions Among the Commenting Parties

    The comments and the discussions among the commenting parties 
raised the following issues relating to the quarterly reports of use.

1. Reporting Compliance With the Sound Recording Performance Complement

    In addition to an initial notice to be filed, with an accompanying 
filing fee, with the U.S. Copyright Office, the commenting parties 
proposed generally that subscription services file quarterly reports of 
use including data to indicate which sound recordings were performed 
and the number of times (summary frequency data). In addition to the 
summary frequency data, sound recording copyright owners proposed that 
each quarterly report include a sample of the service's playlist, to 
permit copyright owners: (1) To verify the accuracy of the summary 
frequency data; and (2) to monitor compliance with the sound recording 
performance complement defined in 17 U.S.C. 114(j)(7). Under one 
proposal, the sample would have consisted of a 30-day report each 
quarter of either: (1) The service's actual playlist; or (2) its 
intended playlist with an error log and an accompanying certification 
of the information's accuracy by a service official. See RIAA 
Additional Reply (Dec. 19, 1996) at 7.
    In response, representatives of subscription services raised two 
issues: (1) Whether the Act requires them to affirmatively report 
compliance with the performance complement at all; and (2) if so, 
whether a sample size could be developed with a true mathematical or 
statistical basis. See DCR Additional Comment (Dec. 12, 1996) at 4-6; 
Letter from Jon L. Praed to Jean R. Milbauer (Jan. 16, 1997). At the 
January 23 meeting, RIAA indicated that it would attempt to determine 
an appropriate sample size if the services were to provide appropriate 
data. On February 11, the Copyright Office encouraged the services to 
address RIAA's request for such data. Memorandum from Nanette 
Petruzzelli, Acting General Counsel, U.S. Copyright Office, to 
Commenting Parties (Feb. 11, 1997).
    On March 11, 1997, after consulting with the other commenting 
services, a representative for DMX proposed that the services simply 
produce their entire intended playlist for each quarter instead of 
providing summary frequency data or error logs, to enable copyright 
owners to determine allocation of royalties and compliance with the 
performance complement. Letter from Seth D. Greenstein, Esq., to Jean 
R. Milbauer, Esq. (Mar. 11, 1997). This proposal was deemed generally 
acceptable to the commenting parties provided that an agreeable 
definition for ``intended playlist'' were reached. See Letter from Jean 
R. Milbauer to Commenting Services (Mar. 13, 1997); Letter from Seth D. 
Greenstein to Jean Milbauer, Esq. (Mar. 18, 1997); Letter from Fernando 
R. Laguarda, Esq., to Jean R. Milbauer, Esq. (Mar. 18, 1997) (``without 
waiving any legal objections previously set forth'').

2. Data Fields

    The commenting parties are also attempting to negotiate agreement 
on data fields to be provided in the reports of use that will permit 
identification of sound recordings performed and distribution of 
royalties to individual copyright owners, without placing unreasonable 
burden on subscription services. See, e.g., DCR Additional Comment 
(Dec. 12, 1996) at 4 n.7; RIAA Additional Reply (Dec. 19, 1996) at 2 
n.1; Letter from Seth D. Greenstein, Esq., to Jean Milbauer, Esq. (Mar. 
18, 1997).

3. Non-Collective Member Copyright Owners

    Finally, issues exist concerning how the reports of use will be 
kept or made available for sound recording copyright owners who are not 
members of a collective, who cannot be located, or who refuse delivery. 
RIAA has created a collective to collect and distribute its members' 
sound recording performance royalties. Owners of copyright in an 
estimated 90 percent of all sound recordings sold in the United States 
are members of the RIAA trade association and will likely designate the 
RIAA collective as their agent or representative; in those cases, 
digital subscription services would file quarterly reports (and any 
royalty payments and accounting information) with the RIAA collective. 
Services, however, may not be able to employ the statutory license in 
this manner for an estimated ten percent of all sound recordings sold 
in the United States. Sound recording copyright owners that are not 
members of the RIAA trade association may not be permitted by RIAA to 
designate its collective as their agent to receive reports and 
royalties. See RIAA Additional Reply (Dec. 19, 1996) at 9-10; DCR 
Additional Comment (Dec. 12, 1996) at 7. Some copyright owners may 
choose not to designate the RIAA collective. See 17 U.S.C. 114(e)(1) 
(permitting designation of common agents on nonexclusive basis). The 
location or identity of other sound recording copyright owners may be 
unknown.

Copyright Office Preliminary Determinations and Additional Policy 
Questions

    Based on the comments and discussions among the parties, which will 
be addressed more fully in the Office's interim regulations, the 
Copyright Office has reached certain preliminary decisions and 
identified certain additional policy questions.
    The Office will accept an optional initial notice which may be 
filed by digital transmission services indicating commencement of 
transmission of sound recordings under the section 114 statutory 
license. This initial notice, to consist simply of the service name, 
address, and contact person, will be placed in Copyright Office 
records, where copyright owners may obtain access to this information 
concerning the use of sound recordings under

[[Page 34037]]

statutory license. Section 114(f)(2), however, requires that copyright 
owners will receive notice of the use of their sound recordings; a 
notice indicating commencement of transmission under statutory license 
does not accomplish that objective, and therefore the regulation will 
not require services to file such a notice. As discussed below, 
copyright owners will most appropriately and reasonably receive notice 
of the use of their sound recordings, and records of such use, by 
direct service. The contents of the initial notice, and the appropriate 
filing fee, will be discussed more specifically in the Office's interim 
regulations.
    The Office has concluded that the Digital Performance Right in 
Sound Recordings Act of 1995 contemplates that digital subscription 
services will keep and make available, not simply summary frequency 
data, but records of use that will enable sound recording copyright 
owners to generally monitor the services' compliance with the sound 
recording performance complement. See 17 U.S.C. 114(d)(2); 114(f)(5); 
114(j)(7). The Office has determined that establishing such a 
requirement is within its rulemaking authority under 17 U.S.C. 
114(f)(2).
    The Office has also determined that sound recording copyright 
owners whose identity and location is known should be served directly, 
or directly via their designated agent, with the quarterly reports of 
use of their copyrighted works under the statutory license. The Office 
will not accept for filing any quarterly reports of use. The Office 
recognizes the potential burden for services of identifying and serving 
individual copyright owners who are not members of a collective such as 
RIAA's. See DMX Comment at 2, 8; Muzak Comment at 2; DCR Reply at 5-6. 
The Office understands the possible disincentive that individual 
reporting could create for performance of recordings owned by small or 
independent record labels. See DMX Reply at 3. However, the regulations 
must establish how records of use shall be kept and made available, and 
the Office is unable to designate a particular entity as a central 
records repository or as a collective agent. See 17 U.S.C. 114(e)(1).
    In order to determine the appropriate regulatory structure of any 
reporting requirements, the Office has examined analogous statutory, 
regulatory, and industry precedent involving collective or compulsory 
licensing of performance and reproduction rights in musical works.
    With their multiple channels and round-the-clock transmission, 
digital services in some respects resemble traditional radio 
broadcasters, who provide reports to three collective performing rights 
societies (that, in turn, monitor hours of radio play). Practically 
speaking, owners of copyright in musical works generally authorize one 
of these collective rights societies to license public performances in 
order to be compensated and receive records of use.
    On the other hand, under the section 115 license and its 
accompanying regulations, by which record companies and others make and 
distribute phonorecords of nondramatic musical works, compulsory 
licensees must serve the copyright owner or its agent directly with 
notice, and with monthly and annual statements of account (which 
include records of distribution). See 17 U.S.C. 115(b)(1); 17 U.S.C. 
115(c) (4)-(5); 37 CFR 201.18(e)(2); 37 CFR 201.19 (e)(7)(i), (f)(7). 
The requirement of actual notice, however, attaches only if the 
registration or other public records of the Copyright Office identify 
the copyright owner and include an address at which notice can be 
served; otherwise, it is sufficient to file the notice in the Copyright 
Office. 17 U.S.C. 115(b)(1); 37 CFR 201.18(e)(1).2 If the 
notice is sent to the last address shown for the copyright owner in 
Copyright Office records, and is returned because the copyright owner 
is no longer there or has refused delivery, the licensee shall file the 
notice with the Copyright Office, along with evidence that it was sent 
by certified or registered mail to that address, and a brief statement 
that the notice was sent to the last address shown in Copyright Office 
records but was returned. 37 CFR 201.18(e)(3). Where an address for the 
copyright owner is not known, or the copyright owner has refused 
delivery, licensees may file their monthly and annual statements of 
account with the Copyright Office Licensing Division, along with any 
evidence of certified or registered mailing. 37 CFR 201.19 
(e)(7)(ii)(A), (f)(7)(iii)(A).3 Any monthly or annual 
statement of account so filed with the Office must be accompanied by a 
brief statement of why the statement was not served on the copyright 
owner. 37 CFR 201.19 (e)(7)(ii)(A), (f)(7)(iii)(A). As a matter of 
business practice, some compulsory licensees may also create an escrow 
account to set aside royalties at the statutory rate for a certain time 
period.
---------------------------------------------------------------------------

    \2\ To be entitled to receive royalties under compulsory 
license, the copyright owner must be identified in the registration 
or other public records of the Copyright Office. 17 U.S.C. 
115(c)(1).
    \3\ The regulations specify that the filing, or failure to file, 
a monthly or annual statement of account with the Office has no 
effect ``other than that which may be attributed to it by a court.'' 
37 CFR 201.19 (e)(7)(ii)(C), (f)(7)(iii)(C).
---------------------------------------------------------------------------

    At the initial meeting of the commenting parties, there was some 
discussion of an escrow account or trust fund for section 114 royalty 
payments for copyright owners who are unknown or cannot be located. See 
Summary of Nov. 14 Meeting 1 (Jan. 2, 1997). The Office has no 
authority to require services to set aside section 114 royalties; just 
as some record companies may escrow royalties for unknown publishers 
under section 115, services may decide for business and legal reasons 
to escrow section 114 royalties. Because, however, the Office has 
concluded that it will not receive reports of use under the section 114 
license and cannot designate a particular entity as a central 
collective or records repository, the Office sees no alternative to 
requiring subscription services that perform sound recordings under the 
section 114 license to serve the sound recording copyright owner whose 
identity and location is known, or its designated agent, directly with 
reports of use.
    The Office is therefore requesting comment on how digital services 
will identify and locate sound recording copyright owners whose sound 
recordings are performed, and how the regulation should define a sound 
recording copyright owner ``whose identity and location is known'' so 
as to trigger the requirement of direct service. Only copyright owners 
whose location or identity is unknown, or who refuse delivery, will not 
be directly served.

1. Reports of Use for Unknown Copyright Owners

    In the event that an address for a copyright owner is not known, or 
the copyright owner has refused delivery, no additional filing will be 
required at the Copyright Office. All digital services may file an 
initial notice with the Office indicating their commencement of 
transmission. All services will be required to maintain their records 
of use (i.e., either the reports of use, or the information underlying 
the reports of use) for a period of three years, the statutory 
limitation for copyright infringement actions. As a matter of business 
practice, services are strongly urged to maintain any evidence of 
mailing and a brief statement as to why the reports of use were not 
served on the copyright owner. While recognizing burdens associated 
with retention of such records, the Office believes it is in the 
services' interests to do so. Services may wish to consider designating 
a collective agent to maintain their reports

[[Page 34038]]

of use for the three year period, and in any event must establish 
reasonable access procedures and conditions.
    Copyright owners who wish to contact digital services may do so 
directly or through their designated representatives. The Office 
envisions that owners of copyright in sound recordings performed under 
the section 114 license who have not been directly served, but who make 
their identity and location known at some point in time, should have 
access to records of use of their works for the preceding three years, 
and should thereafter be served directly with reports relating to 
subsequent performances. The Office therefore inquires how services 
propose to make records of use reasonably available and accessible, and 
how copyright owners whose works are performed but who have not been 
directly served should make their identity and location known. 
Subscription services may want to comment on how such copyright owners 
might identify their sound recordings, and how a regulation might 
delineate boundaries within which such copyright owners may demand 
access to records of use.

2. Audit of Records of Use

    A related, although not identical, question concerns the auditing 
of the digital services' records of use by copyright owners in general. 
During discussions, the commenting parties agreed that any rules 
governing audits of accounting records were best handled under section 
114(f)(2) as a matter of rates and terms, to be addressed and resolved 
through CARP or negotiation. However, in order to ensure access to 
records of use and limit the potential for multiple audits, some 
parties proposed a regulation that would permit audits of the 
information underlying the reports of use, but would limit copyright 
owners to a single such audit per year; such procedure would be 
initiated by a notice of intent to audit, filed with the Copyright 
Office and published in the Federal Register, with a comment period for 
all interested parties to agree on choice of auditor. See DMX Comment 
at 12-13; RIAA Reply at 14-16, 18. The Office is assuming that the 
decision to provide the intended playlists in the quarterly reports 
largely obviates the need for an audit regulation, and in any event is 
inclined to see the practice of auditing as a business and legal 
decision. The Office will issue no regulation, therefore, concerning 
audit of the information underlying the reports of use.

3. Confidentiality of Records and Data Separation

    Finally, the Office recognizes confidentiality concerns that 
services have expressed in relation to serving playlist information and 
programming details upon sound recording copyright owners. See Muzak 
Comment at 2-3. Precautions that may be implemented at a large 
collective to protect the information's confidentiality may be 
difficult to duplicate by dozens of smaller recipients. Yet the Office 
also recognizes that the commenting services' desire to avoid 
burdensome data separation and the production of different data in 
different formats for different copyright owner entities was a primary 
motivator for the proposal ``simply to produce the entire intended 
playlist for each quarter,'' subject to appropriate confidentiality 
provisions. See Letter from Seth D. Greenstein, Esq., to Jean Milbauer, 
Esq. (Mar. 11, 1997). Even if a software program can be developed to 
separate and extract names of copyright owners who are, or are not, 
members of a particular collective, there may eventually be multiple 
collectives. On the other hand, because royalties must be paid to small 
and individual copyright owners whose works are performed, the Office 
recognizes that services will necessarily generate some data to 
determine those royalties, and undertake some separation of copyright 
owner names, sound recording identifiers, and frequency of 
performances. The Office inquires whether services plan to provide 
their intended playlists for each quarter to small and individual sound 
recording copyright owners (as well as to a major collective such as 
the RIAA's) and, if not, whether the services can propose an 
alternative reporting mechanism that would indicate which sound 
recordings were performed and the number of times (summary frequency 
data), and permit sound recording copyright owners to monitor 
compliance with the sound recording performance complement (perhaps 
through date and time information). The Office requests comment as to 
whether services will extract the names of individual copyright owners, 
or members of various collectives, in order to provide such individuals 
or entities with separate royalties or reports, and whether this would 
provide a means for an alternative reporting mechanism. The Office 
inquires whether copyright owners should be required to sign and return 
a confidentiality agreement before receiving reports consisting of 
playlist information, and whether the regulation should permit 
copyright owners to waive service of reports including performance 
complement information in order to receive simply the summary frequency 
data pertaining to the use of their sound recordings only. We also seek 
comment on the estimated costs for providing intended playlists to 
different parties, and on who should bear the costs of serving, 
maintaining, and accessing such records of use.
    The Office is providing a 60-day comment period with this inquiry 
to permit the parties to conduct any discussions and reach agreement on 
any outstanding issues; there will be no reply period. We would 
particularly appreciate comment from sound recording copyright owners 
not represented by RIAA, and are aware of at least one such entity that 
has requested records of use from DMX. See Letter from Seth D. 
Greenstein, Esq., to Jean Milbauer, Esq. (Mar. 11, 1997).

Questions for Comment

    The Office requests public comment on the following questions 
relating to the quarterly reports of use to be provided by digital 
subscription services:
    (1) The Office has determined that digital subscription services 
should provide records of use that will indicate which sound recordings 
were performed and the number of times, and that will enable sound 
recording copyright owners to monitor compliance with the sound 
recording performance complement defined in 17 U.S.C. 114(j)(7). Should 
a service provide its intended playlist as the vehicle for such 
reporting? Is an alternative reporting mechanism available?
    (2) What should be the definition of ``intended playlist''? Would a 
service provide its intended playlist for each day, and each channel, 
at the close of each quarter? How long after the close of each quarter 
should the report be due? If the intended playlist is made available, 
would error logs also be required in the event of a system malfunction?
    (3) Should the reports of use bear a certification by a service 
representative, and, if so, why? What would be the content of such a 
certification?
    (4) The Office has determined that sound recording copyright owners 
whose identity and location is known should be served directly, or 
directly via their designated agent, with quarterly reports of use of 
their copyrighted works under the statutory license. In serving small 
and individual sound recording copyright owners, who are not members of 
a major collective such as RIAA's, will services provide their intended

[[Page 34039]]

playlists or can they propose an alternative reporting requirement that 
would indicate which sound recordings were performed and the number of 
times (summary frequency data) and permit monitoring of the performance 
complement? What costs are involved in providing the intended playlist 
to different parties? Who should bear the costs of serving, 
maintaining, or accessing these records of use?
    (5) Does provision of the intended playlist raise confidentiality 
problems? If so, what measures can a service or copyright owner take to 
protect its confidentiality? Should there be any express restrictions 
on the use of this information and, if so, what restrictions? If in 
fact the information is confidential or trade secret, and no 
satisfactory alternative reporting requirement can be devised, should 
the copyright owner be required to sign and return a confidentiality 
agreement before receiving reports of use consisting of playlist 
information? Should the regulation permit the copyright owner to waive 
service of information relating to the performance complement in order 
to receive simply the summary frequency data pertaining to the use of 
their sound recordings only?
    (6) How do digital subscription services plan to identify and 
locate copyright owners of sound recordings they perform under 
statutory license? Beyond identification in the Copyright Office 
registration records, how should the regulations define a sound 
recording copyright owner ``whose identity and location is known'' for 
the purpose of triggering the requirement of direct service? How will 
services identify and locate foreign sound recording copyright owners?
    (7) How do services anticipate that they will separate the names of 
members of various collectives, or of independent copyright owners, in 
order to provide such individuals or entities with separate reports? 
Given that services must pay royalties to small and individual 
copyright owners whose works are performed, what data will services 
generate to determine those royalties, and what separation of copyright 
owner names, sound recording identifiers, and performance frequency 
will they necessarily undertake? Could the data generated for royalty 
calculation and distribution be made available in reports of use, as an 
alternative to the intended playlists, in a way that would permit 
copyright owners to generally monitor the performance complement?
    (8) How should copyright owners who have not been directly served 
make their identity and location known to digital services? How might 
these copyright owners identify their sound recordings for digital 
services?
    (9) Should services retain their reports of use for three years, or 
is there information underlying the reports of use (such as summary 
frequency data, and date and time information) that might be more 
easily kept and made available? How do services plan to make records of 
use for a three year period reasonably available and accessible for 
copyright owners who have not been directly served? Are regulations 
concerning access for such individuals and entities needed?
    (10) What data fields and sound recording identifiers are 
available, and which of these should be included in the quarterly 
reports of use? Will the date and time of the performance be identified 
and, if so, how? With respect to compilation albums, what data fields 
should be included in the reports of use? If there are any particular 
sound recording identifiers or data fields that should not be required, 
or that should not be required during the interim regulatory period, 
state which fields, and why.
    (11) Should the regulations address the reporting of non-music and 
foreign programming? How would such programming be defined? What notice 
and recordkeeping requirements would apply to such programming?
    (12) Should the Office expressly recognize a transition period 
before services must provide reports conforming completely to the 
regulations? If so, what should be the transition period, and what is 
the minimum information that should be required?

    Dated: June 18, 1997.
Marybeth Peters,
Register of Copyrights.
[FR Doc. 97-16553 Filed 6-23-97; 8:45 am]
BILLING CODE 1410-31-P